Ready for the Summer selling season? Here is a frequently asked question that has risen to the top: How do you get rid of restrictive covenants or to make changes to existing restrictions against property which are detrimental to a sale? Like all good lawyer answers, it depends! Without any statement in the restrictions themselves about how to terminate or change them, it takes the consent of all those covered by the restrictions to change or terminate them. Occasionally, a title company will agree that the restrictions have become invalid, if they are ignored by a substantial number of property owners over a significant amount time. That is a case by case determination, however. Also, the Legislature has made some provisions as to termination/amendment. If there is a method for amending the restrictions in the restrictions themselves, that method must be followed. Courts have ruled that if there is a method to amend restrictions, then they can also be completely terminated by that same procedure (unless that power is negated in the original restrictions). Under current law, residential subdivisions in subdivisions in cities with a population over 100,000, the ETJ of such Cities and unincorporated areas in counties with population over 30,000 can form a petition committee, which can solicit votes to change restrictions by 75% majority. There are some special situations (laws relating only to historic areas or to “amenity” properties (resort property), for example) the Legislature has provided a method for making changes where the restrictions contain no express provision to do so. So you have to know a number of factors before a definite answer can be given—but it can be done!
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